People v. Maciel CA2/8

Filed 1/9/23 P. v. Maciel CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, B314126 Plaintiff and Respondent, Los Angeles County Super. Ct. No. VA066518 v. LUZ MUNOZ MACIEL, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County. Lee W. Tsao, Judge. Reversed and remanded with instructions. Miriam K. Billington, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent. _________________________ INTRODUCTION In 2021, appellant Luz Munoz Maciel filed a motion to vacate her 2001 conviction for brandishing a firearm at a motor vehicle occupant. She claimed defense counsel gave incomplete advice as to the adverse immigration consequences of her no contest plea and failed to investigate and negotiate an immigration-neutral plea agreement. After argument, the trial court denied the motion and appellant now appeals. We reverse. FACTUAL AND PROCEDURAL BACKGROUND1 I. 2001 Conviction for Brandishing a Firearm On July 31, 2001, the People filed a complaint against appellant, charging the following: Count 1—carrying a loaded, unregistered firearm, in violation of Penal Code2 section 12031, subdivision (a)(1); Count 2—child abuse (as to her minor son), in violation of section 273a, subdivision (a); and Count 3— brandishing a firearm at a person in a motor vehicle, in violation of section 417.3. Arraignment took place on July 31, 2001. Appellant was present in court with private counsel Lorenzo Pereyda and pled 1 We note three motions to augment the record on appeal were filed. On December 28, 2021, we granted appellant’s motion to augment filed December 27, 2021. On April 20, 2022, we granted respondent’s motion to augment filed April 1, 2022. On April 26, 2022, we granted respondent’s motion to augment filed April 5, 2022. 2 Undesignated statutory references are to the Penal Code. 2 not guilty to all three counts with the assistance of an official Spanish language interpreter. The early disposition hearing took place on August 29, 2001. The minute order specifies that “no offer reached” during the hearing. We have no other information about that hearing and can only speculate about whether and how plea negotiations proceeded. At the preliminary hearing on September 17, 2001, appellant was present in court with private counsel Catherine Case. The court heard from three witnesses—Olivia Heredia, Angel Rocha, and Officer Gilbert Jara. Olivia Heredia (Heredia) testified that at approximately 1:40 p.m. on July 28, 2001, she was in her car, parked in the driveway of the apartment building where she resides, waiting …

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